U.S. GOVERNMENT PRINTING OFFICE
BOARD OF CONTRACT APPEALS
The Appeal of TAMMS LITHOGRAPHY, INC.
Docket No. GPO BCA 14-89
July 13, 1990
MICHAEL F. DiMARIO
Administrative Law Judge
OPINION
This appeal, timely filed by Tamms Lithography, Inc., P. 0.
Box 284, Cedarburg, WI 53012 (hereinafter Appellant), is from
the final decision of James A. Davidson, Contracting Officer
(C.O.), Los Angeles Regional Printing Procurement Office, U.S.
Government Printing Office (GPO), Washington, DC 20401
(hereinafter Respondent), dated March 22, 1989, terminating
its contract with Appellant identified as Purchase Order
N-1262, Program 2909S, Jacket 679-155, for default for failure
to meet delivery requirements. The decision of the
Contracting Officer is affirmed for the reasons set forth
hereinbelow.
BACKGROUND
The referenced contract required that Appellant produce all
specified printing requirements as might be ordered by the
Department of the Army from time to time during the term
September 1, 1988, to August 31, 1989, each such order to be
initiated by the issuance of a "print order" from the
Department of the Army to the Appellant. The specifications
reflected the anticipated frequency of orders during the term
to be four per year. The specifications further stated that
the following work schedule was to be adhered to for each
print order, beginning the work day after notification of the
availability of the print order and Government-furnished
materials; i.e., camera copy, distribution list, blue labels,
selection certificates, etc.:
Contractor must pickup material and print order within 1 workday
after notification.
Contractor must deliver proofs within 5 workdays.
Contractor must pickup edited proofs within 3 workdays.
Contractor must complete distribution within 10 workdays.
(Tab A, Rule 4 File)
Pursuant to such terms, the contractor was issued Print Order
80000 (Tab D, Rule 4 File) on October 19, 1988, with an
established delivery date of November 15, 1988. The
contractor did not adhere to the scheduled delivery date nor
to a promised delivery date of December 2, 1988.
Nevertheless, the Army issued Print Order 80001 to Appellant
on December 9, 1988, (Tab F, Rule 4 File) specifying delivery
of the second requirement by December 30, 1988. .However, when
Print Order 80000 was received, it was found to be deficient
in certain technical respects for which a 15 percent discount
was taken by the Government. (Tab H, Rule 4 File)
Additionally, Appellant was advised by cure notice, dated
December 16, 1988, that its failure to perform on .Print Order
80000 within the schedule of the specifications was a
condition that was endangering performance on the contract in
accordance with its terms. (Tab I, Rule 4 File) Appellant was
given 5 days from its receipt of such notice to advise of the
measures it was taking to cure such condition with advice that
if the condition was not cured by December 30, 1988, the
Government might terminate the contract for default pursuant
to the terms of the contract. Appellant did not timely
respond to the notice.
Appellant did not adhere to the scheduled requirements for
Print Order 80001. (Tabs J, K, L, M, and N, Rule 4 File)
Accordingly, Appellant was issued a second cure notice on
December 28, 1988, stating that such failure to perform was
also a condition endangering performance and affording
Appellant the same opportunity to respond to the cure notice
within 5 days of its receipt with the caveat that unless such
condition was cured the Government might terminate the
contract for default pursuant to its terms. (Tab 0, Rule 4
File)
On January 12, 1989, Appellant, Erwin Tamms, telephonically
discussed the matter with the C.O., at which time Tamms was
advised that the Government would not accept another late
issue and that if Appellant was late on the next issue, the
Government would default the contract. (Tab P, Rule 4 File)
Appellant responded to both the Print Order 80000 and the
Print Order 80001 cure notices by letter, dated January 21,
1989. (Tab Y, Rule 4 File) [Such response was not furnished
to the Board for its consideration.]
Appellant was issued Print Order 80002 on February 14, 1989,
with a delivery date of March 10, 1989. (Tab S, Rule 4 File)
Appellant again fell behind in meeting the scheduled
requirements and was issued a third cure notice on February
23, 1989, advising that such condition was endangering the
performance of the contract in accordance with its terms.
(Tab V, Rule 4 File) The cure notice again afforded the
Appellant the opportunity to present in writing advice of the
measures it had adopted to cure such condition subject to the
caveat that unless such condition was cured the Government
might terminate the contract for default pursuant to its
terms.
Respondent was notified by the Army on March 13, 1989, that
100 copies of Print Order 80002 were received on March 10,
1989, but that the remainder of the order (450 copies) was
late. (Tab X, Rule 4 File) On March 14, 1989, no other copies
having been received, Respondent's contracting personnel
sought the concurrence of Respondent's Contract Review Board
for the termination of the contractor for default.
Concurrence was given on March 21, 1989, (Tab Y, Rule 4 File)
and the contract terminated that day with the Appellant
advised of this action by "Notice of Termination Complete,"
dated March 22, 1989. (Tab Z, Rule 4 File)
By letter dated May 1, 1989, Appellant filed its notice of
appeal. An examination of Appellant's notice of appeal
reflects in its third and fourth paragraphs that Appellant
takes exception to the frequency with which the three print
orders had been issued. It anticipated at the time of its bid
that the specified frequency of "approximately four orders per
year" meant "quarterly," whereas it had received three orders
before the end of the "second quarter." This purportedly
complicated its capability to fit such orders into its
schedule, thus the delay.
The remaining two substantive paragraphs of the letter deal
only with Print Order 80002. The first alleges that March
15th was the date by which Appellant was to have completed its
mailing. Appellant arrives at the March 15th date by applying
the schedule set out in the specifications, supra, as follows:
Page nine of the specs. states that the contractor will deliver
proofs within 5 workdays. Program 2909S Print Order 80002 was
dated 2/14/89. The five days would begin on the workday after
notification that date should be 2/16/89. Monday, the 20th of
February, was a Holiday. We sent the proof via UPS overnight on
the 23rd. The proof was returned 3/1 which should mean that 3/2
would be the start of 10 workdays for completion. March 15th
then should be the completion date.
The second alleges that Appellant, in fact, had completed the
mailing on March 13th, having sent 100 advance copies via "UPS
overnight" on March 10th and the remaining 450 copies the same
day via "UPS ground."
Subsequently, by letter dated June 12, 1989, the Board advised
Appellant that the appeal was received and docketed on June 8,
1989, and that Appellant had 30 days from receipt of the
Board's docketing letter to file a complaint with the Board in
accordance with Rule 6.(a) of the Board's Rules of Practice
and Procedure, a copy of which was furnished to Appellant as
an enclosure to the said letter.
Thereafter, by letter dated July 12, 1989, Appellant advised
that it wished to submit the case on the record, that it still
had not been told why the job was considered late, and that it
had sent the original of a certain enclosed letter but had not
received the courtesy of a reply. l
No further information has been filed with the Board.
A general denial was entered on behalf of the Government
pursuant to Rule 6.(b), no answer having been received.
The matter is before the Board in this form for its decision
on the record.
1 Examination of the enclosed letter showed it to be dated
June 24, 1989, and addressed to "USGPO, 15000 Aviation Blvd.
Room 2W26, Lawndale, CA 90261, Attention: Verbe Sutton,
Contracting Officer." The letter, in substance, protested
Respondent's "nonresponsibility determination in regard to
Program 2909S on the basis of greater prices" and asks Sutton
to "reconsider our bid." As such, it does not appear to be
responsive to the Board's Rule 6.(a) requirement or relevant
to this appeal.
DISCUSSION
The first issue presented is whether the default termination
should be vacated or modified based upon Appellant's assertion
that it failed to meet the contract schedule requirements
because it had anticipated that the orders would be received
quarterly. Having examined the contract terms and the facts,
we conclude that the mere assertion presents no basis for
either action. The contract's plain language states that it
"is a requirements contract for the items and for the period
specified herein. . . . The quantities of items specified
herein are estimates only, . . ." (Page 3 of 12, Tab A, Rule 4
File) "Subject to any limitations elsewhere in this contract,
the contractor shall furnish to the Government all items set
forth herein which are called for by print orders issued in
accordance with the 'ORDERING' clause of this contract. Given
such language the "Frequency of Orders" provision of
"approximately four orders per year" (Page 4 of 12, Tab A,
Rule 4 File) cannot be construed as "quarterly" without
distorting the clear meaning of the contract. "Quarterly" and
four times per year are plainly not synonymous terms since the
Government could order more or less than one order in any one
quarter and still be within the approximate or estimated
annual quantity. Moreover, the fact that Appellant was
delinquent on the very first order militates against a
conclusion that but for such anticipation Appellant would have
performed within the schedule of the contract.
The second issue presented is whether or not Appellant's
delivery of the products required by Print Order 80002 was
within the schedule requirements of the contract. Appellant
argues that the scheduled completion date was March 15th,
1989. The C.O. and the Army, on the other hand, apparently
believed the scheduled date to be March 10, 1989. (Tab X,
Rule 4 File) Neither date was apparently correct. First, the
March 10, 1989, date appears on the Print Order as the
scheduled delivery date. The ordering provisions set forth on
page 3 of the Specifications, however, provide that "all print
orders issued hereunder are subject to the terms and
conditions of this contract. This contract shall control in
the event of conflict with any print order." Thus, the March
10th date is not controlling unless it, in fact, is the date
arrived at by applying the schedule requirements of the
contract. Examining those requirements as Appellant has done,
we find that the schedule begins on "the work day after
notification of the availability of the print order and
Government-furnished materials." The record does not show the
date of such notification. Appellant claims, in effect, that
the date was February 15, 1989, the day after the print order
was issued. He therefore concludes that the schedule began on
February 16, 1989. We disagree. The only available record to
the Board is the print order issued February 14, 1989. From
this we must conclude, absent a showing to the contrary, that
notification occurred the same day. This being the case, by
applying the schedule formula we conclude that the full order
was due by March 14, 1989, one day earlier than asserted by
Appellant and four days later than believed by the Department
of the Army. That being the case, it is clear from the record
that Appellant did not meet the delivery schedule, the C.O.
having stated to the GPO Contract Review Board that "as of
March 14, 1989, no other copies have been received." (Tab Y,
Rule 4 File)
Accordingly, we find no basis for concluding that the
Contracting Officer's determination to "terminate the
remainder of the contract for Default with all reprocurement
costs" to Appellant "[b]ecause they have failed to meet our
schedule requirements . . ." was erroneous in light of the
fact that the contract provision that "Adherence to this
schedule must be maintained." (Page 9 of 12, Tab A, Rule 4
File), the cure notices, various telephone calls, and the
January 12, 1989, conversation between the C.O. and Erwin
Tamms made it clear that time was of the essence. Therefore,
we affirm his decision and deny the appeal.
It is so Ordered.